Citation Nr: 0609495
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 03-28 931 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for chronic obstructive
pulmonary disease (COPD) as secondary to service-connected
pulmonary tuberculosis (PTB).
2. Entitlement to an increased (compensable) rating for PTB.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1954 to November 1957.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision by the
Huntington, West Virginia, Regional Office (RO) of the
Department of Veterans Affairs (VA). The Board remanded the
case for additional development in April 2005.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of the issues on appeal was obtained.
2. COPD was not present in service and is not shown to be
related to service nor to be proximately due to or the result
of a service-connected disability.
3. PTB was diagnosed shortly after his discharge from active
service in October 1959 and was shown to be active, with a
right lung lesion compatible with minimal reinfection-type
tuberculosis, and was found to be completely arrested from
December 8, 1960.
4. Service connection for active PTB was granted by the RO
in a February 1960 rating decision and the disease was
redesignated as inactive in a December 1960 rating decision
that assigned downwardly staged ratings from 100 percent from
October 7, 1959, to 0 percent from December 8, 1971.
5. PTB is presently manifested by a history of active PTB in
1959, without evidence of advanced or moderately advanced
lesions and any continued disability.
CONCLUSIONS OF LAW
1. COPD was not incurred in or aggravated by service and is
not proximately due to or the result of a service-connected
disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.310 (2005).
2. A compensable rating for inactive PTB is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97,
Diagnostic Codes 6701-6724 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). In this case,
the veteran was notified of the VCAA duties to assist by
correspondence dated in June 2001 and April 2005. The
veteran's service medical records and all identified and
authorized post-service medical records relevant to the
issues on appeal have been requested or obtained. Further
attempts to obtain additional evidence would be futile. The
Board finds the available medical evidence is sufficient for
adequate determinations. The duty to assist and duty to
notify provisions of the VCAA have been fulfilled.
Service Connection Claim
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1131 (West
2002); 38 C.F.R. § 3.303 (2005). A disability which is
proximately due to or the result of a service-connected
disease or injury shall be considered service connected.
38 C.F.R. § 3.310 (2005). When aggravation of a nonservice-
connected disability is proximately due to or the result of a
service-connected disorder, the veteran shall be compensated
for the degree of disability over and above the degree of
disability existing prior to the aggravation. Allen v.
Brown, 7 Vet. App. 439 (1995).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service. 38 C.F.R. § 3.303(d). For the
showing of chronic disease in service, there are required a
combination of manifestations sufficient to identify a
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a veteran seeking disability
benefits must establish the existence of a disability and a
connection between service and the disability. Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
The United States Court of Appeals for Veterans Claims
(Court) has held that where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required. Grottveit v. Brown, 5 Vet. App. 91
(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492
(1992). VA is free to favor one medical opinion over another
provided it offers an adequate basis for doing so. See Owens
v. Brown, 7 Vet. App. 429 (1995).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102 (2005).
Based upon the evidence of record, the Board finds COPD was
not present in service and is not shown to be related to
service nor to be proximately due to or the result of a
service-connected disability. Service medical records are
negative for complaint, diagnosis, or treatment for any
respiratory disorders. Service connection, however, was
established for PTB in February 1960. VA general medical
examination in February 2002 noted diagnoses of inactive PTB
and possible COPD most likely associated with cigarette
smoking. Although in a February 2003 private medical
statement A.W.T., M.D., the veteran's family physician noted
it was more likely that the veteran's COPD was related to
cigarette smoking than tuberculosis, it was also his opinion
that it could not be stated for sure that the veteran's
COPD/respiratory difficulties were unrelated to his
tuberculosis or the damage from tuberculosis.
Subsequent to a thorough examination, review of the evidence
of record, and a search of the available medical literature
in July 2005 a VA thoracic surgeon/chest specialist found the
veteran's COPD was associated with his chronic bronchitis and
his greater than 50 year history of cigarette smoking. The
physician stated it was less than likely that COPD was
etiologically related to his military service or to his
service-connected PTB. It was further stated that the PTB
did not cause an increase in the COPD. It was noted the
veteran's PTB had been dormant and inactive since 1960 and
had not increased nor proximately caused his COPD. The
examiner reported that a medical literature review had
revealed no article showing a causal relationship between
tuberculosis and COPD. The Board finds the July 2005 VA
examiner's opinion is persuasive.
While the veteran believes he has COPD as a result of his
service-connected PTB, he is not a licensed medical
practitioner and is not competent to offer opinions on
questions of medical causation or diagnosis. Grottveit, 5
Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the
Board finds entitlement to service connection must be denied.
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
the claim in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001). The preponderance of the
evidence is against the veteran's claim.
Increased Rating Claim
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings in the Rating
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2005).
It is the responsibility of the rating specialist to
interpret reports of examination in the light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability present. 38 C.F.R. § 4.2
(2005).
Consideration of factors wholly outside the rating criteria
constitutes error as a matter of law. Massey v. Brown, 7
Vet. App. 204, 207-08 (1994). Evaluation of disabilities
based upon manifestations not resulting from service-
connected disease or injury and the pyramiding of ratings for
the same disability under various diagnoses is prohibited.
38 C.F.R. § 4.14 (2005).
When there is a question as to which of two evaluations to
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating, otherwise the lower rating shall be
assigned. 38 C.F.R. § 4.7 (2005).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 4.3 (2005).
General Rating Formula for Inactive Pulmonary Tuberculosis:
Entitled on August 19, 1968
For two years after date of inactivity, following active
tuberculosis, which was clinically identified during
service or subsequently
100
Thereafter for four years, or in any event, to six years
after date of inactivity
50
Thereafter, for five years, or to eleven years after
date of inactivity
30
Following far advanced lesions diagnosed at any time
while the disease process was active, minimum
30
Following moderately advanced lesions, provided there is
continued disability, emphysema, dyspnea on exertion,
impairment of health, etc.
20
Otherwise
0
Note (1): The 100-percent rating under codes 6701 through
6724 is not subject to a requirement of precedent hospital
treatment. It will be reduced to 50 percent for failure to
submit to examination or to follow prescribed treatment upon
report to that effect from the medical authorities. When a
veteran is placed on the 100-percent rating for inactive
tuberculosis, the medical authorities will be appropriately
notified of the fact, and of the necessity, as given in
footnote 1 to 38 U.S.C. 1156 (and formerly in 38 U.S.C. 356,
which has been repealed by Public Law 90-493), to notify the
Adjudication Division in the event of failure to submit to
examination or to follow treatment.
Note (2): The graduated 50-percent and 30-percent ratings and
the permanent 30 percent and 20 percent ratings for inactive
pulmonary tuberculosis are not to be combined with ratings
for other respiratory disabilities. Following thoracoplasty
the rating will be for removal of ribs combined with the
rating for collapsed lung. Resection of the ribs incident to
thoracoplasty will be rated as removal.
38 C.F.R. § 4.97, Diagnostic Codes 6701-6724 (2005).
Based upon the evidence of record, the veteran's service-
connected inactive PTB is presently manifested by a history
of active PTB in 1959, without evidence of advanced or
moderately advanced lesions and any continued disability.
Records show the veteran's PTB was diagnosed in October 1959
after his discharge from active service and was shown to be
active with a right lung lesion compatible with minimal
reinfection-type tuberculosis. The disorder was found to be
completely arrested from December 8, 1960. The RO granted
entitlement to service connection for active PTB in a
February 1960 rating decision and the disease was
redesignated as inactive in a December 1960 rating decision
that also assigned downwardly staged ratings from 100 percent
from October 7, 1959, to 0 percent from December 8, 1971.
VA examinations in February 2002 and July 2005, in essence,
found the veteran's PTB had been inactive since 1960 with no
evidence of recurrence or reactivation. The July 2005
examiner noted X-rays revealed minimal scarring at the left
cardiophrenic angel, but no evidence of cavitation, pleural
scarring, chronic fibrocavitary tuberculosis, cavitary
lesions, or cor pulmonale. Although the veteran has asserted
that his service-connected PTB is more disabling than
reflected by his present evaluation, he is not a licensed
medical practitioner and is not competent to offer opinions
on questions of medical causation or diagnosis. Grottveit, 5
Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the
Board finds entitlement to a compensable rating is not
warranted.
The Board further finds that there is no probative evidence
of any unusual or exceptional circumstances, such as marked
interference with employment or frequent periods of
hospitalization related to this service-connected disorder,
that would take the veteran's case outside the norm so as to
warrant an extraschedular rating. The case does not present
such an exceptional or unusual disability picture as to
render impractical the application of the regular schedular
standards. Therefore, referral by the RO to the Chief
Benefits Director of VA's Compensation and Pension Service,
under 38 C.F.R. § 3.321, is not warranted. See Bagwell v.
Brown, 9 Vet. App. 337 (1996). The preponderance of the
evidence is against the veteran's claim.
ORDER
Entitlement to service connection for COPD as secondary to
service-connected PTB is denied.
Entitlement to an increased rating for PTB is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs